stringent than that used by Great Britain when, by the Non-intercourse Act, our revolutionary war was changed, by act of Parliament, into a public territorial war.*

THE SUPREME COURT.

Has the Supreme Court thus far followed the decisions of the political departments of government on the question as to the status of rebels as public enemies? — that is to say, enemies within the sense of international law?

This question will be answered by reference to the cases which have arisen since the beginning of the war.

By far the most important decisions on this subject were made in March, 1863, and are commonly known as "The Prize cases." +

In these opinions the judges recognize the insurrectionists as public enemies, following, as was their duty, the decision of the Political Department of the govern

ment.

How could judgment, condemning these vessels as lawful prize, be sustained if the belligerents were not admitted to be public enemies? Though a vessel, captured while trading with an enemy, may be lawful prize, irrespective of the character of the trader, whether friendly, neutral, or hostile, to whom it belongs, yet it is because his vessel may aid a public enemy, that it becomes liable to capture. No property of a friendly or neutral power can be lawfully captured because it might aid a criminal, a robber or a pirate, or an insurgent, who if he can in any sense be called an enemy, is merely a private, while acting

*See Act 16 Geo. 3, 1776.

as

See dissenting opinion in The Prize cases. War Powers, 153.

The opinion of the Court, together with that of the dissenting Judges, may be found by reference to the 2d Vol. Black's S. C. Reports, or to the 8th ed. of the War Powers, pages 140 to 156, and an analysis of these opinions may be found in the same volume, pages 238 to 243.

or personal

enemy of the United States. The law of prize has no application to the case of personal or private enemies, and cannot be invoked to justify a capture of private property, unless there exists a public enemy and a state of

war.

Blockades, under the law of nations, can lawfully exist only when there is a public enemy to the country declaring it which proclaims and enforces them.

The Circuit Courts of the United States, having adjudged the inhabitants of States declared in rebellion to be public enemies, have therefore decided that they are not entitled to sue in any of the national courts.*

Doubtless the disability to sue in courts of the United States, and all other disabilities resulting from the status of a public enemy, may be removed. But it is for the President and Congress to determine what sound policy and public safety shall require.

It is a matter of congratulation that there is no want of harmony between the different departments of Government, and that the Supreme Court has not gone beyond its legitimate functions in time of civil war; but has, by following the decisions of the political departments on political questions, given the best evidence that, even in revolution, it will not be necessary for the safety of the country to overthrow its judiciary.

Thus it has been shown that the question whether the inhabitants of the States in insurrection are "public enemies," and entitled to the rights, or subject to the liabilities of belligerent law, is to be decided, not by the

* See Bouneau vs. Dinsmore, 24 Law Rep. 381.

S. C. 19 Leg. Inst. 108.

Israel G. Nash (of North Carolina) Complt. vs. Lyman Dayton et al. (decided by Nelson, Judge of the U. S. Circuit Court of Minnesota.)

See also U. S. vs. The Isaac Hemmett, Legal Jour. 97.

U. S. vs. The Allegheny, ib. 276.

judicial, but by the political departments of this Government. That the Executive and Legislative departments have formally and finally decided that the rebels are a public enemy, and are subject to the laws of war. That the Judicial Department has submitted to and followed that decision; and that the question as to the political status of rebellion, is now no longer open for discussion. That whatever rights, other than the rights of war, may be conceded to the inhabitants of rebellious territory, will be bestowed on them from considerations of policy and humanity, and not from admission of their claims to rights under our Constitution.

Judicial authority cannot be delegated, and as the commander of a department, or other officer who presides over a military tribunal while determining a case of civil jurisdiction, acts in a quasi judicial capacity, a question has been made whether the right to hold such courts can be delegated by the President to his officers. Although such proceedings of the war courts as complaints of parties, pleadings, examination of witnesses, deliberations and decisions of judges, in many respects resemble those of judicial courts, yet, as they are not deemed judicial within the true meaning of the Constitution, no valid objection arises from that source, to the delegation of the power to hold military courts, to such officers as may be appointed by the President.

This, and nearly all the war powers, must be exercised through officers acting under the Commander-in-Chief; for his authority must be exerted at the same time in different and distant places; and as he cannot be omnipresent, that authority which could not be delegated would become comparatively useless. The practice of the Government has, from the beginning, been in accordance with this view of constitutional law.

The power of the President is in part delegated to his Secretary of War, whose acts are deemed in law to be the acts of the President. The commanders of military

*Wilcox vs. Jackson, 13 Pet. R. 498.

Opinion of Wm. Wirt, Att'y Gen. (July 6, 1820).

U. S. vs. Eliason, 16 Pet. S. C. R. 291.

departments are clothed with authority transferred to them by the Commander-in-Chief. Therefore, if that authority is not limited so as to prevent it, they have the right, while in the enemy's country in time of war, to organize military courts martial and commissions, and to administer all other belligerent laws. Tribunals so organized may exercise all functions properly conferred upon them, and their decisions are not only valid, but are not subject to reversal by any judicial court; but only by the final action of the President.

So also, if a military governor is placed over such hostile district, clothed with the powers of the Commander-in-Chief, he may himself administer the laws of war over those subjected thereto within his precinct, and may establish courts military and civil, with jurisdiction over all persons and things therein. And whether he acts on his own discretion in so doing, under general orders, or under special orders in each case, he is, according to military law, responsible only to his superior officer.

Although civilian, or civil or merely executive officer, has a right

to institute, or act in a military court, unless deriving special authority to do so from some law of Congress or from military orders,

Where seems, therefore, to be no reason why any of the war powers, in time of actual service, may not be delegated to military men by the President, or by any other military officer who possesses them; and no reason for making any distinction between the different classes. of powers which may be so delegated.